1995 OHIO 115 - State v. Dever

[This opinion has been published in Ohio Official Reports at

73 Ohio St.3d 722

.]




             THE STATE OF OHIO, APPELLEE, v. DEVER, APPELLANT.
                       [Cite as State v. Dever,

1995-Ohio-115

.]
Appellate procedure—Application for reopening appeal from judgment and
        conviction based on claim of ineffective assistance of appellate counsel—
        Application denied when applicant fails to establish good cause for failure
        to file the motion within ninety days from journalization of the appellate
        judgment, as required by App.R. 26(B).
       (No. 95-831—Submitted July 26, 1995—Decided October 11, 1995.)
     APPEAL from the Court of Appeals for Hamilton County, No. C-880712.
                                  __________________
        {¶ 1} Appellant, Frederick M. Dever, Jr., was convicted of rape. The court
of appeals affirmed the conviction. State v. Dever (Jan. 31, 1990), Hamilton App.
No. C-880712, unreported

1990 WL 6405

. We overruled his motion for leave to
appeal. State v. Dever (1990),

52 Ohio St.3d 701

556 N.E.2d 526

. The United
States Supreme Court granted certiorari, vacated the judgment and remanded the
case to the court of appeals. Dever v. Ohio (1990),

498 U.S. 1009

111 S. Ct. 575

112 L. Ed.2d 581

. The court of appeals reversed the decision of the trial court. The
state appealed to this court, and we reversed the judgment of the court of appeals
and reinstated the conviction and sentence. State v. Dever (1992),

64 Ohio St. 3d 401

596 N.E.2d 436

.
        {¶ 2} It is undisputed that in February 1995, Dever filed with the court of
appeals an application to reopen his appeal under App.R. 26(B), alleging ineffective
assistance of his appellate counsel. The court of appeals denied the application,
finding that appellant had failed to establish good cause for not filing the application
to reopen within ninety days from the journalization of the appellate judgment, as
required by App.R. 26(B)(2)(b). The court of appeals also held that the judgment
                             SUPREME COURT OF OHIO




Dever was seeking to open had been rendered a nullity by the United States
Supreme Court and was therefore impossible to reopen.
        {¶ 3} Appellant appeals the denial to this court.
                               __________________
        Joseph T. Deters, Hamilton County Prosecuting Attorney, and Christian J.
Schaefer, Assistant Prosecuting Attorney, for appellee.
        Frederick M. Dever, Jr., pro se.
                               __________________
        Per Curiam.
        {¶ 4} We affirm the decision of the court of appeals for the reasons stated
in its opinion.
                                                               Judgment affirmed.
        MOYER, C.J., DOUGLAS, WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and
COOK, JJ., concur.
                               __________________




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